March 18, 2015

Seizure of Narcotics Raises Fourth Amendment Issues

Searches and seizures of property are protected by our Fourth Amendment due process rights. Courts often have to wrestle with real-world situations to see if officers have respected defendants' constitutional rights when contraband is taken during the course of an arrest. A recent case provides more powers for officers to seize property that is in open view to them.

Drug Seizure in Entryway

The case involves a detective in plain clothes who received a report of possible drug activity. The officer went to the scene, and from far away with binoculars observed the suspect go back and forth from his home, handing objects to people in exchange for cash. Based on this, the officer surmised that there was drug dealing taking place.

When the suspect was approach by officers outside his residence, he stomped on some objects, but could not destroy a vial of cocaine. The officers proceeded to the house, where only an unlocked glass storm door was closed. Looking inside the entryway behind the storm door, but in front of the closed main front door, the officer saw more drugs. They entered through the unlocked glass door and seized the drugs.

At trial for drug possession and distribution charges, the state tried to bring forth numerous incidences of prior drug offenses for which the defendant had been convicted. The defendant moved to suppress that evidence. The motion was denied, and the defendant was subsequently convicted.

Appeal Raises Fourth Amendment Issues

The defendant appealed, claiming that the evidence of prior convictions should not have been admitted, but also claiming that the entire initial search and seizure of his property was illegal because the officer opened the storm door with no warrant and no emergency situation existing to get them.

The appellate court clarified that when an officer is lawfully inside property, he may seize items that are in plain view. But if an officer is not lawfully inside property, and sees contraband inside, the court agreed that an officer does not have the right to walk into the private property and seize the items. The officer must usually get a warrant.

However, there is an exception to the need for a warrant where "exigent circumstances" exist, which may include the risk that evidence will be lost or destroyed.

The court upheld the officer's right to simply look through the storm door, calling it a valid visual observation that would have provided probable cause for a warrant had one been sought. First, the court felt the officer was lawfully on the property, having entered an unlocked and see-through storm door. The court also believed that had the officer gone back for a warrant, the illegal drugs would likely have been moved or disposed of, and thus, the officer had the exigent circumstances necessary to enter the area. In fact, the defendant had already destroyed some evidence when he stomped on items in front of the officers.

Prior Conviction Evidence

The court also found no error in allowing the prior convictions as evidence. To admit prior drug convictions, the court must consider:

1. the value of the prior crime evidence to the state;
2. how old the prior convictions are;
3. how similar the prior convictions are to the current one; and
4. whether the defendant's credibility is an issue in the case.

In this case, the prior convictions were for dealing narcotics, making them sufficiently similar. Because the defendant's testimony at trial contradicted that of the state, his credibility was at issue, which made credibility impeachment evidence important enough to be used by the state.

The appellate court therefore upheld the conviction entered by the jury at the trial.

If you are arrested, there may be complex constitutional issues that your attorney should understand to give you the best defense possible. The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

March 10, 2015

Technology Doesn't Prevent Man From Conviction Despite GPS Saying He's Innocent

We've often talked about the interplay between technology and our courts, as well as our constitutional rights. But a new case involving a Maryland criminal conviction is a sobering reminder that although technology can sometimes exonerate accused defendants, it's not always completely reliable in the eyes of a jury.

Man Convicted Despite GPS Evidence

In 2009, a Maryland girl was shot and paralyzed. Convicted of the crime was a man named Lamont Davis. What makes the case extraordinary is that Davis had a GPS tracking device on him at the time as a requirement of a prior condition of probation, and that GPS device didn't show him at the scene of the crime when it happened. It showed him as being at home.

So how was he convicted? According to the article in the Trentonian, his attorneys admitted to making missteps. One of those mistakes was agreeing that the GPS had inaccurately showed Davis' location over 100 times in the past, possibly leading to doubt in the jurors minds as to the accuracy of what the GPS said on the date of the murder.

Police said the GPS taped on a 2-hour delay, meaning he could have been at the scene of the crime when it happened.

But Davis now has some powerful allies, arguing his conviction should be overturned. GPS experts as well as the head of Juvenile Services, the agency that issued and monitored the tracking device, say that the device was accurate, and that Davis couldn't have been at the shooting.

Even an expert reviewing surveillance footage has said Davis is innocent, demonstrating that the shooter in the grainy video was not wearing an ankle tracking device, as Davis would have been at the time. An agent from Juvenile Justice says that the ankle tracking device would have been impossible for Davis to just slip off.

The prosecutors' office has said it's now reviewing the case. But most agree that Davis' conviction was a miscarriage of justice.

Lessons From the Case

It's possible that the emotion of the crime, which involved a five year old and had media publicity, fueled the desire to just convict, and Davis was a convenient target. Davis' girlfriend was involved in the altercation that lead to the shooting, again making Davis an easy target.

We tend to think of technology as infallible. DNA evidence, video cameras, and GPS tracking would seem to distinctly tell a jury who committed what crime and when. But this case illustrates that evidence at trial is about more than technology. It's about lawyering, and trying to control or interpret what a jury sees and understands. It's also about the emotion a jury often feels.

Technology can be a powerful tool in helping to acquit an accused defendant. But only in the hands of the right lawyer.

Make sure your attorneys understand technology and how to use evidence to give you the best defense possible. The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

February 24, 2015

When Do You Have a Right to Defend Others From Attack?

When we think of self-defense as a defense to a criminal charge, we often think in terms of defending ourselves. And although the laws vary a bit from state to state, generally, there is always a right to reasonably defend yourself from injury. But we don't often give thought to whether we're allowed to defend others. Most states including Maryland do recognize this right, but there are certain requirements that must be met at trial to ensure the defense is successful.

The right of defense of others in Maryland means that you have a right to take reasonable steps to defend someone else who may be a victim of harm. But there are certain requirements that must be met for the defense to be successful.

The person aiding the victim must reasonably believe that the victim is in danger, and that the victim would have a right to defend himself if he could.

The term "reasonably believes" means that a jury will determine whether the belief is reasonable. In many ways, this is no different than the standard of defending yourself--except that instead of a first person account ("this is what was happening to me"), you're left to rely on a third-person account ("this is what I saw happening to her").

As an example, if your mother were 100 yard away from someone with a knife, and you shot the person with the knife, it may not be reasonable to believe your mother was in danger, as 100 yards is a football field. Put the assailant 10 feet from your mother, and now your belief may be reasonable.

The person aiding must use reasonable and necessary force

Again, this is a standard that will be determined by a jury. If an old man is hitting your mother with an umbrella, shooting him may be unreasonable, if you could have easily wrested the umbrella away from the old man. If a 25-year-old bodybuilder is slamming that umbrella into her, and you are a smaller-framed or older individual, then more drastic force may be reasonable to stop the assault.

You'll note that there is no requirement that the person you are protecting be a friend or family member. You may act reasonably to protect anyone.

Be Aware of Risks in Defending Others

Believe it or not, it is possible that you, as a person coming to the aid of another, could be sued civilly, even if you are not convicted of any crime. In other words, just because the criminal laws say you were entitled to defend the other person doesn't mean the attacker couldn't sue you civilly. (So-called "Good Samaritan Laws" usually insulate you from liability from the person you are helping--not from the person you may be attacking to protect a victim).

And, of course, it goes without saying, that you should always be careful when coming to the defense of others. It's a tough balance between standing up and protecting someone in danger, and putting yourself in danger.

A good defense to a criminal charge requires understanding all the evidence and facts. The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

February 5, 2015

Controversial Viral Video Emerges Showing How to Possibly Avoid DUI Checkpoints

The internet is abuzz over a video of a man who touts a way to avoid being stopped at a DUI checkpoint. And while the tactic is being used in other states, the basis for the technique rests in all of our constitutional rights. The question is whether using the idea actually can help you avoid being stopped at a DUI checkpoint, and whether you actually have a legal right to use it.

The Purpose and Motive Behind Avoiding a Checkpoint

The New York and Florida attorney that devised the idea isn't advocating driving drunk. Nor does he believe that people who legitimately are over the legally prescribed limit of their state should be able to avoid punishment.

Rather, the concern rests with officers using anything they may see or smell during the checkpoint to lead to further investigation into other activities, and thus, to arrest.

An example would be stopping you for a routine DUI check, smelling marijuana, searching your trunk, and arresting you for drug possession. There would have been no probable cause to look in the trunk had the officer not smelled anything, and he wouldn't have smelled anything if he didn't stop you for a routine DUI checkpoint. There was never any probable cause for drug possession.

Viral Video Shows How to (Possibly) Do It

To avoid these kinds of scenarios, one Florida man, counseled by his New York and Florida attorney, taped himself going through a checkpoint with a sign on his window that says that he wants to remain silent. The driver doesn't open his window at all, but does have his license and registration ziplocked to his window for officers to look at. After some confusion, the officers do nothing, and waive him through.

There's even a website that has a sample sign for Florida drivers to post on their window. No word on whether anybody from Maryland has followed suit with a sign based on Maryland laws.

In fact, most lawyers and even officers who looked at the video said there was nothing inherently illegal about the activity. It's important to remember that this is for a DUI checkpoint--not for an actual stop on the road. And, even at a checkpoint, there's nothing to stop an officer from tailing you and pulling you over later for a bad tail light, or driving 2 miles over the speed limit.

Technique is Not a Guarantee

It's worth noting that at least one Florida officer has said that the failure to roll down a window could constitute an obstruction of justice, preventing officers from observing whether you are impaired, and that officers could arrest anybody using the technique. That's especially true where windows are tinted. But there's no word that anybody using the technique has been arrested for doing it.

It's also worth noting that if you go through a checkpoint and are questioned or arrested, you always have the right to remain silent, and to request an attorney, whether you've put a sign on your window or not. So regardless of whether you agree with the technique or not, the overall reminder of all of our constitutional rights is one that everyone should remember.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the constitutional rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

January 22, 2015

Police Excessive Force Can Give Rise to Civil Injury Lawsuits

The news has brought us a lot of sad stories about violent interactions between police officers and the general public. Like any story, it's usually the most violent, newsworthy cases that get our attention. But a series of other, smaller, civil lawsuits in Maryland involving officers have also been occurring with less media coverage, and these incidents illustrate the rights that people may have civilly against excessive police force.

Cases Involving Excessive Police Force

A man recently settled a lawsuit in which he alleged that he was violently handcuffed during a wrongful arrest. The man asserted that as a relative was being arrested, he was removing the relative's dirt bike.

The officer on scene stated that the man was resisting her orders to stay back, and that he was pushing to get closer to his relative. When the man was arrested, it incited a larger scene and an unruly crowd. The man and his relative were arrested and taken away.

He was charged with resisting arrest and disorderly conduct, but the charges were dropped. The man also ended up needing surgery, allegedly due to how he was treated by the officers at the scene.

The man eventually settled his lawsuit, including a provision that the events of the arrest remain confidential.

In another incident in September, a woman was arrested for allegedly abusing officers who were called to her home to investigate a crime. When a crime technician arrived, the woman became very aggressive, leading the technician to call for police backup.

When the police arrived, he walked right past the female occupant of the house to make sure the technician was okay, which offended the woman. The incident became more heated, additional officers were called, and the woman was eventually tasered by police inside the apartment.

The woman was charged with disorderly conduct and resisting arrest, but the charges were eventually dropped, and a lawsuit filed by her against the officers was settled out of court.

And in yet another situation, a man became violent with officers that had arrived at his apartment to help his girlfriend remove her belongings pursuant to a restraining order. The man was sprayed with mace, and had injuries to his teeth and face.

A lawsuit he filed against the police for excessive force and wrongful arrest was eventually settled out of court.

Excessive Force Cases Can Be Fact-Intensive

It may well be that some of these individuals crossed the line when dealing with police officers. Certainly, officers have a right to do their job without interference or violence, and are entitled to use reasonable force in subduing any threats.

But there is also a line that officers must not cross, and using force in excess of what is necessary can lead to civil liability.

Excessive force cases are delicate, intensively fact-based cases, but ones that can be brought if someone feels their civil rights have been violated by the use of overly excessive force.

If you're injured in an altercation with police or any other individual, you want attorneys that understand your rights and can get all the facts. Contact the injury attorneys of Brassel, Alexander & Rice, LLC today for a consultation to discuss your case.

January 8, 2015

Supreme Court Makes it Easier for Officers to Comply with Fourth Amendment when Stopping Vehicles

A police officer can't just stop a driver on the road for no reason. An officer generally must have "reasonable articulable suspicion" that a law is being broken to stop you if you're driving. And once they do that, they may have a right to search your vehicle. In other words, the reasonable articulable suspicion "opens the door" to potential further searches, if probable cause is developed that a crime has been or is being committed.

But what happens when a police officer is wrong about reasonable suspicion? For example, what happens if an officer thinks you're breaking a law, but you're not? Can the officer still arrest you for illegal items he may find on your car? The United States Supreme Court addressed just this question in Heien v. North Carolina.

Bad Tail Light Leads to Arrest After Vehicle Searched

In 2009, an officer in North Carolina observed a vehicle which, to him, looked suspicious. He followed the vehicle, and observed that the left brake light was out. Believing this to be illegal, the officer used the bad light as the reasonable articulable suspicion to pull the vehicle over.

After pulling them over, the officer became suspicious about the vehicle occupants' behaviors, and thus asked to search the car. Both occupants said yes, and the officer found a bag of cocaine in the car. The men were charged with the crime of cocaine possession.

In court, they argued that the evidence of the cocaine should be suppressed because the officer's stop of their car was illegal. They argued that, in fact, North Carolina law does not make it illegal to drive with only one brake light. Thus, the officer's rationale for stopping them because one brake light was out was faulty, eliminating the entire justification of stopping the vehicle.

The Court disagreed, allowed the evidence to be used, and an appeal all the way to the United States Supreme Court followed.

United States Supreme Court Makes a Decision

The U.S. Supreme Court noted that "reasonable suspicion," as per the Fourth Amendment, which allows an officer to stop a vehicle, only means that an officer has "an objective basis for suspecting" that a law has been broken.

The fact that the officer mistakenly believed that driving with one taillight out was illegal did not make the stop illegal because the Fourth Amendment is based on a "reasonability" standard. A mistake made by an officer when stopping a vehicle, or searching property, can be based on incorrect or inaccurate information, so long as the belief by the officer that there is reasonable suspicion be "reasonable."

In this case, the mistake by the officer was not based on a mistaken fact, but on a mistake in the law itself. The Supreme Court found this makes no difference, citing to other cases as far back as the 1800s. The Supreme Court noted that officers have to make quick decisions in the heart of the moment, and that they cannot be held to a standard of complete accuracy factually or legally.

The case is somewhat concerning, broadening immensely the power an officer has to stop a vehicle. Officers who are charged with understanding the laws they enforce now can make legal mistakes, so long as they're "reasonable," when stopping a vehicle. The subsequent search and seizure still has to comply with the Fourth Amendment, but this case makes it much more difficult to challenge an officer's right to stop your vehicle in the first place.

Have you been charged with a crime? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the constitutional rights of criminal defendants at all stages. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

January 5, 2015

What is an Indictment?

The recent cases of Eric Gardner and Michael Brown have brought a lot of argument and controversy to our country. And while everybody takes their own side, one thing that makes these cases different than some others is the lack of any criminal indictment. It seems many people don't even understand what an indictment is, and what its role is in the criminal justice system. In Maryland, there are two ways a felony can be charged in the circuit court. 1) By criminal information; or 2) by grand jury indictment. How a felony is charged in Circuit Court is at the discretion of the prosecutor's office. Each way of charging a felony has its own benefits and drawbacks.

Felony Charge by Information

A criminal information is simply written charges written by the prosecutor. It is largely up to the prosecutor's own discretion in deciding whether to bring charges or not. The criminal infraction is then filed with the Clerk of the Court, and then served on the accused.

But the prosecutor doesn't get complete discretion. The Fifth Amendment to our constitution says that nobody can answer for a crime "unless on a presentment or indictment of a grand jury." That means that some formal process must occur before someone can stand trial for a felony.

If felony criminal charges are brought by a criminal information, there will usually be a probable cause hearing before a judge, called in Maryland a Preliminary Hearing. This is not a hearing to determine guilt or innocence, and many of the facts and evidence may not even be presented. It's simply a hearing to determine if there is "probable cause" that a felony was committed (compare that low standard to the very high "beyond a reasonable doubt" standard used at trial).

Felony Charge by Indictment

But some states (and our federal system) use an indictment process. Instead of a hearing in front of a judge, a grand jury hears the charges. The grand jury's goal is, again, not to determine guilt or innocence, but to determine if there is enough evidence that some crime has been committed in order to have a trial later on.

During a grand jury proceeding, only the prosecutor gets to speak and question witnesses. The accused's attorney and the accused are generally not allowed to be present. It is a very one-sided process, because it's supposed to be--the law generally favors trials, and wants to make it easy for the prosecutor to demonstrate to the grand jury that a trial is needed. The trial is where an accused will get most of his or her constitutional and procedural protections, and where all the evidence will be brought out.

Perhaps the juries in these recent cases thought the evidence was so clear cut that a trial was not needed. That may be right or wrong. But don't assume that the decisions were made after presentation of both sides and all evidence. That's simply not the purpose of a grand jury or probable cause hearing.

Contact an Attorney for Help

Have you been charged with a crime? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the constitutional rights of criminal defendants at all stages. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

December 8, 2014

Wrongfully Convicted Man Can Continue Lawsuit Against Baltimore

Watching network TV police shows, you see a lot of storylines involving those who are wrongfully accused. The prosecution hides evidence, a witness is corrupt, and an innocent man goes to jail. That may seem like TV drama. But a recent case in Maryland is reality that would be fit for any TV drama on the airwaves today.

The Conviction of James Owens

James Owens was convicted of murder in 1987 in Baltimore City, and was sentenced to life in prison. During the trial, fearing that the case against Owens was falling apart, prosecutors decided to "work with" their star witness, feeding him information, promising him leniency, and threatening punishment if he failed to testify against Owens with the information provided to him by the state.

The witness testified that Owens handed him the murder weapon a few days after the murder, and that Owens had confessed to it. The "problem" for the state was that Owen's boss had told prosecutors that Owens was at work when that conversation supposedly happened (meaning, it couldn't have happened). Making matters worse, the prosecution did not tell Owen's attorney about what Owens' boss had said, as they were legally required to do.

It gets better (or worse). The prosecution failed to disclose that another witness who testified against Owens had sent numerous letters requesting release--information that could have been used by Owens to show the witness had a motive for his testimony.

The Lawsuit

Owens served 20 years, wrongfully, before DNA evidence exculpated him. Once released, he sued the City of Baltimore and its police force, for the events surrounding his trial.

He sued under what is known as "Section 1983," a federal statute enacted after the Civil War, which makes it illegal, and allows for recovery of damages, where someone violates another person's constitutional rights under color of state law.

Normally, you can't sue government entities if you are wrongfully convicted. The government, including its prosecutors and police force, has immunity from such suits. They have a duty to perform, and even when they get it wrong, they can't be sued for executing their duties.

But the U.S. 4th Circuit Court of Appeals has now allowed Owens to go forward on his lawsuit, noting that although immunity still exists, it does not exist where a defendant can show a "pervasive practice" of unconstitutional or illegal behavior. Owens did, in fact, state in his original complaint that the practices of the Baltimore police and prosecutors went beyond his case, and were pervasive.

The court also allowed Owen's suit against the individual police officers to stand on the same basis. Police officers, just like prosecutors, are duty bound to be forthright with defendants, and to disclose information that may help or exculpate defendants.

Ironically, the detectives who are now viable defendants, apparently served as inspiration for characters on NBC's "Homicide: Life on the Street" and HBO's "The Wire."

Owens has not won his case yet. The court only said that he can move forward with it--no substantive rulings on the merits of his claims have been made. He'll still need to prove that what happened to him was pervasive within the city agencies. That's a tough burden--but at least the decision is a good first step in allowing the wrongfully convicted to get some reparation for wrongdoings against them.

If you are facing a trial, you want a criminal law attorney on your side who understands what the prosecution can and cannot do. The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the constitutional rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

November 20, 2014

Constitutional Rights Harder to Invoke for Defendants Than You May Think

A recent Maryland criminal case has made a statement about the constitutional rights of those convicted of crimes. Unfortunately, the decision makes an accused's invocation of constitutional rights harder, instead of easier.

The Facts of the Case

The case involves the arrest of a man accused of shooting and robbing a man inside his home. He was charged with murder, and 11 other crimes.

The accused was taken into custody and interviewed in an interrogation room by police. There was lengthy conversation between the accused and the detectives before any Miranda rights were read.

The accused, before having his Miranda rights read, made a statement "I don't want to say nothing. I don't know--" before he was interrupted by a detective.

The accused then had his Miranda rights read, and later confessed to the crime to the interrogating detectives. He asked the court to suppress his confession, but that request was denied, meaning the confession could be used by the state at the Defendant's trial.

Because of the denial, the accused and the state agreed on the facts of the case (which likely resulted in no actual trial, but rather a judgment that still preserved the accused's right to appeal). He was subsequently convicted for his crimes based on the facts (including his confession).

On appeal, the accused argued his confession should be suppressed on the basis that the information was given involuntarily, and that he was coerced to make his confession even after stating he did not wish to speak.
The appellate court ultimately disagreed with the accused, and upheld the trial court's decision not to suppress the statements, in a blow to defendants' constitutional rights.

Court Weighs Miranda Issue

A confession must be made voluntarily to be admissible. Physical threats, or coercion, will render a confession invalid. A confession also must come after being read Miranda rights. The Miranda rights inform someone of the right to remain silent, per the Fifth Amendment, and if it's invoked, it must be honored by police

The accused argued that when he said "I don't want to say nothing. I don't know--" that he did not want to speak about the crime, that he had invoked his Fifth Amendment right against self-incrimination. Thus, the confession that came after that should have been suppressed.

The invocation of silence must be provided clearly and unambiguously by an accused. This isn't as clear as it sounds. In other cases, Defendants who have said "I don't got nothing to say," "I ain't gonna talk about sh-t," or "I need somebody I can talk to," have been found to be too ambiguous to have invoked their Miranda rights.

The test is an objective one. It doesn't matter what a Defendant meant or thought. It only matters whether a reasonable detective would interpret a request to invoke Miranda silence rights as clear and unambiguous.

The appellate court upheld the trial court, finding that the "I don't know--" made the previous statement that the accused didn't want to say anything less than clear. Thus, the Court felt the Miranda rights had not been invoked, making the continued questioning permissible and the confession admissible.

Court Also Rules on Coercion Question

The accused also argued that he was coerced when police told him if he confessed he may "see outside again."

Police can state the consequences of different charges, or comment on possible sentences or scenarios, but cannot threaten or promise better or worse punishment or promise cooperation or leniency in return for a confession.

The appellate court felt that telling the accused he "may not see the outside again" was simply a way of telling the accused that a first degree murder charge would result in a lifetime sentence, and thus, was simply properly apprising the accused of a possible outcome at trial. Thus, there was no coercion and the confession was admissible.

This case illustrates how scrutinized every statement made by a criminal Defendant can be. Subtle language, all taken in context, can be the difference between a statement being kept or thrown out. Sadly, appellate courts have almost required criminal defendants to become legal experts, making sure they use just precisely the right language, just to invoke their time honored constitutional rights.

If you are facing a trial for an arrest or criminal charge, you want a criminal law attorney on your side when dealing with law enforcement. The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the constitutional rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

November 3, 2014

Juror Misconduct Threatens Rights of Criminal Defendants and Integrity of the System

Our criminal and civil justice system relies upon the integrity and ethics of our jurors. We are unique in that we have a jury system to determine the outcome of those arrested for crime in Maryland and beyond, but with that privilege also comes the obligation of jurors to perform their duties faithfully and honorably.

Many people don't pay much attention to news surrounding juror misconduct. But if you're on trial for a crime, and you have a lawyer that understands the jury system, you surely will start to care a whole lot more about jurors playing by the rules.

Cases Where Jurors Have Ignored Instructions

Recent news around the country has highlighted that in fact, jurors sometimes don't always pay attention to their instructions.

In any case with a jury, criminal or civil, a judge will provide instructions to jurors. These instructions are somewhat uniform in Maryland and nationwide. The crux of the instructions are that jurors must insulate and isolate themselves from any outside news of the case they are hearing. The idea is to prevent jurors from forming opinions from outside sources, like TV, magazines, or websites. Their opinion should only be formed by what they are hearing (or not hearing) at trial.

The very notorious trial of Jodi Arias has highlighted these problems. Recently a juror was kicked off the Arias jury panel, for openly asking a reporter whether she was Nancy Grace, the celebrity legal opinion commentator on Cable TV.

Obviously, any juror looking to get on TV, is more interested in their own celebrity than in adjudicating the facts, and would not be isolating themselves from the media.

A juror in a Palm Beach Florida murder trial was recently questioned over surfing the internet on his laptop. This was after the previous trial for the same alleged crime was thrown out after juror misconduct, when a juror failed to disclose his ex-wife's criminal history, and for having a "vodka-drinking test" at his home while deliberations were going on.

Mistrials May Result From Misconduct

Problems with jurors can lead to mistrials. Mistrials are "non-trials" where the judge declares the entire trial thrown out, and the entire matter must be tried, from the start, all over again. This results in increased cost, expense and stress for a criminal defendant.

It can also prejudice a criminal defendant, as many witnesses for the state will be prepared for the questions asked of them at the second trial, thus eliminating the element of surprise that the defense attorney may have otherwise had.

To some extent, we must have some sympathy for jurors in extended trials. Their lives are often uprooted, contact with their family limited, and they may even be forced to live in a hotel with security standing by at all times. They will often listen to testimony they may not understand, in trials that are hardly as exciting as what is portrayed on TV.

Still, a good defense attorney must be aware of the need to ensure that a jury is following its obligations. There are lives at stake, and our system depends on their faithful compliance with their instructions.

If you are facing a trial for an arrest or criminal charge, you want attorneys that understand the entire process, including delicate juror issues. The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

October 22, 2014

New Marijuana Laws Raise Complex Legal Questions

As news of legalized marijuana continues to spread across the country, Maryland is now getting its a way. A new law has already taken effect that reduces the penalties for being found with marijuana, and while the new law doesn't make possession completely legal, it significantly reduces the consequences for being found with marijuana in your possession.

New Law Decriminalizes Possession of Marijuana

It used to be that possessing marijuana was a crime, punishable by the criminal code with possible jail time. But as of October 1, 2014, possessing less than 10 grams of marijuana will now be considered a "non-criminal" event, meaning that while you can still be punished with fines, there is no jail time, and the offense is not classified as a criminal offense. It isn't much different than a traffic infraction or parking ticket.

It is still a crime to carry drug paraphernalia. Possessing over 10 grams of marijuana is still a crime. If it's found that you had an intent to distribute marijuana, that's still a crime, regardless of how much pot is found.

This begs the question of how an officer knows how much pot is too much just by looking. Officers won't be carrying scales with them in the streets, and the difference between 8 grams and 11 is not an easy distinction to make by eye.

Maryland law enforcement agencies have decided that they will use the ever-so-trustworthy "best guess," and may arrest if the amount of pot simply looks like 10 grams.

So, although it's not a criminal offense to have 9 grams of pot, you can still potentially be hauled to the station for an official "weighing." After weighing the pot, if it later turns out that there was less, citizens will be allowed to leave (with, of course, their official citation, and of course, without their pot).

If it turns out that it was more than 10 grams, but they thought it was less than 10 and only issued a citation, they won't track you down and press the more serious criminal charges.

Legal Issues May Arise From Searches

The new law brings up loads of very complex legal issues.

The most obvious are the maintenance and uniformity of the scales being used. When fractions of grams make a difference between criminal and non-criminal infractions, law enforcement should have an obligation to use properly calibrated, functioning, highly accurate equipment. It's unknown whether that will be the case.

Probable cause is a big problem as well. Normally, an officer that observes you committing a crime has probable cause to search you or your belongings. How does an officer know if probable cause exists if she doesn't know whether you have 9 grams (which may not provide probable cause to search you, not being a criminal offense), or 11 grams (which would provide probable cause)?

What happens if, for example, an officer searches your glove compartment because he's convinced you have 11 grams of pot? There, he finds an illegal handgun. Later, it turns out you only had 9 grams of pot. Is the search of your glove compartment now rendered illegal?

These are legal issues that play themselves out in criminal courts all the time. It looks like with the passage of the new law, there will be some significant legal questions related not just to marijuana, but other criminal charges as well.

Do you have questions about any search, seizure, or new criminal laws? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience protecting the rights of criminal defendants. If you or someone you know was charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

September 22, 2014

Electrocuting Defendants In Court May Be a Growing and Troubling Practice

We're all familiar with the police's ability to shock--or "tase"--as a method of subduing the unruly or those resisting arrest. It's generally seen as a more humane alternative for police to gain an upper hand, rather than use lethal force.

But in one Maryland criminal courtroom, it was not the police doing the electrocuting during an arrest. It was the judge ordering it, inside his courtroom, and during the defendant's own trial. And you'll be shocked (pun intended) to learn that this isn't the first time defendants have been shocked in open court.

The Use of Electronic Control Devices

It's actually not uncommon for defendants to be fitted with devices that allow officers to shock them in court if needed. Such devices are often used as a security device for self-represented defendants, who need to be able to walk about the court during their trial and present their case. But obviously, actually electrocuting defendants is supposed to be reserved for when the defendant presents a threat, and not when they're simply making arguments the judge doesn't like.

Such was the case in a Maryland criminal courtroom recently. A criminal defendant continued to argue his own legal theory, as unrepresented criminal defendants often do, after a judge told him to stop. But rather than threaten contempt, or just wait until the defendant was done with his argument, to stop him from talking, the judge ordered the defendant electrocuted, in open court. The judge then continued the trial, as if nothing had happened. The Judge has since been removed from the bench by the MD court of Appeals.

The events are similar to a 2004 incident in Utah, where a college professor who was known to be mentally ill, but not dangerous, was ordered to be seized by the judge. Although he was agitated, he threatened no one. Yet, he was severely and immediately electrocuted in open court, though it's unknown if that was according to the judge's orders.

Improper Uses of Electrocution Threaten Valuable Rights

Both of these cases demonstrate the improper usage of electronic control devices as torture mechanisms, used at best to subdue defendants who could easily be subdued other ways, and at worst, as a way to deal with the mentally ill who the courts don't have the patience to deal with in any other manner than undue force. The mentally ill, who may be unfairly perceived as "scary," and who may be less likely to understand the need to hire an attorney, or the courtroom rules, are at particular risk.

Aside from the obvious problems with tasering people in open court, the readiness of a court to electrocute a defendant presents serious threats to a defendant's constitutional due process rights. A defendant has a right to a fair trial, and to defend himself in court. But a criminal defendant fearful of receiving 50,000 volts is more likely to be quiet and less likely to challenge witnesses or make arguments, even if they may not be legally sound ones anyway.

A criminal defendant tasered in front of a jury likely poisons the jury into thinking he is dangerous, ill, or more likely to have committed the crime he's charged with.

Even the most unexpected situations can result in a loss of your constitutional rights. Don't risk a criminal trial by going it alone. The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience with the rights of criminal defendants. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

September 9, 2014

Maryland Court Decides that Drivers Can Be Punished for Driving with Suspended but Expired Licenses

Can you be punished for illegally using something you no longer have? That bizarre question was recently decided by a Maryland Appellate Court in deciding whether a defendant could be convicted for driving on a suspended license that had already expired.

Specifics of the Case

Robert White was accused of driving on a revoked or suspended license. His license was suspended for failure to pay child support. His defense was that he couldn't be punished for driving on a suspended license, because it had already previously expired. Because his license was expired at the time of his arrest, White argued, it was as if he didn't have a license, and thus the state can't punish someone for driving on a suspended license that no longer exists due to its expiration.

It's established law that someone never issued a license can't be convicted of driving on a suspended or revoked one. White argued that having a license that had expired was functionally the same as never having one--in both cases, the license is non-existent, a renewal application has to be made to obtain one, and one would not have a privilege to drive. If someone who never had a license couldn't be convicted of driving with a suspended license, neither could someone who had one but it had expired, he argued.

But a Maryland appeals court has rejected that argument, making a distinction between one who never had a license, and thus never had a privilege to drive, and one who at one point had a valid license and privilege to drive, but lost it, as White did.

The court rationalized that if it accepted White's argument, it would actually provide an incentive for someone to allow their license to expire.

For example, was your license suspended because of failure to pay child support? Simply allow the license to expire, if it expires sooner than the time period your license is suspended, then the legislative punishment of driving on a suspended license would cease to exist.

Contact Us for Professional Legal Help

Problems with your license or any charges or arrests relating to it? The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience with the rights of criminal defendants. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

August 25, 2014

Can You Videotape Police Officers?

With the recent events in Ferguson Missouri and other areas, the question is being raised whether bystanders can film police officers while they are doing their jobs, and to what extent police officers can prevent filming or even confiscate cell phones or erase videos.

The Law of Taping Officers

For a long time, some police used wiretapping laws to claim that they couldn't be taped. These are laws that generally prohibit recording or filming someone without their knowledge or permission. But that is no longer the accepted law.

Today, any court deciding the question has determined that it is a recognized first amendment right to film the police. In fact, the NYPD recently reminded its officers by memo that filming by the public was legal. But that doesn't make the right to tape absolute.

Any taping which obstructs with an officer's ability to do their job won't be upheld as a first amendment right. Shove your phone in the officer's face as he's arresting someone, and you're likely interfering with the officer's ability to do the job. And of course, in the heat of a fray, if you reach into your pocket to get a small black handheld object, you may know it's your phone - but the officer may well think it's a weapon.

Officers May Still Wrongfully Deter You From Taping Them

Many police departments have been slow to get the message. Reporters from the Huffington Post and Washington Post (one who was a respected Black Journalist of the Year Winner) were recently arrested for filming police activities. The charges were later dropped. And while police may still use force if you resist them, seizing your phones or deleting videos can still lead to lawsuits against the police. Such was the case with a 37-year-old Austin, TX man arrested after filming an arrest, who later founded an organization encouraging people to videotape police.

Although no federal court has said that the police can't be filmed, many federal circuits simply haven't addressed the issue, leaving it up in the air in some regions of the country. Although it's likely that if tested, the right to record would be upheld nationwide, if there is a dispute and you end up in court, it would be up to a jury to decide if you're filming disrupted the officers enough to prevent them from doing their jobs.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience with the rights of criminal defendants. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.

August 21, 2014

Removal of Names From Sex Offender List is Based on Sound Legal Principles

Thousands of defendants convicted of sex-related crimes are being removed from Maryland's sex offender lists after a recent court ruling. Although the initial reaction is outrage, the legal principles that justify removing the names are sound and serve to protect all criminal defendants no matter with what crime they are charged.

What is the Sex Offender Registry?

In Maryland, like many states, if a defendant charged with certain sex-related crimes is convicted, the accused is labeled a sex offender. The sentence doesn't have to be severe--a defendant could accept a penalty of probation and no jail time, but still be forced to be labeled a sex offender.

Out of concern that individuals charged with these kinds of crimes could be a menace to the public, states such as Maryland developed sex offender registries or lists, which are simply databases where people can search their neighborhoods and be alerted to who may be living around them that has been designated a sex offender.

Why People Are Being Removed From the Registry

The reason why thousands are being removed from the current list is because of what is known as retroactivity. In criminal law, retroactivity means that if you are convicted of a crime, and the punishment for the crime is increased after your conviction, you only are subject to the punishment as it existed when you were convicted--not the new, increased punishment.

Maryland's registry was created in 1995. So, if someone were convicted of a sex crime in, for example, 1992, before there was a registry, they were still being included in the registry. A Maryland appellate court has now said that those convicted before the registry existed must be removed from the list because the punishment of being on the registry didn't exist when they were convicted.

This seems like a legal technicality preventing people from identifying dangerous people who may be living among them. But actually, it's a victory for due process and legal fairness.

For an example, imagine you were convicted for possession of marijuana. You are convicted and given a maximum penalty. Just as your prison term is about to end, the legislature changes the law, raising the maximum penalty. Now you would have to serve the new maximum. And just as you are about to finish that term, the legislature decides that a fine of $100,000 can be assessed for people convicted of your crime. Now you owe that money. The punishment and prison term could never end.

Or, imagine that you take a plea. You know the maximum penalty for your crime is one year, so you decide to risk it and go to trial. You may not have made that decision if the maximum jail time was 5 years, or 10. There would be no way for criminal defendants to make educated decisions about plea bargains, without some certainty in their potential penalties if convicted.

Retroactivity is designed to allow criminal defendants to have a definite, understandable, and established penalty. It is also designed to protect criminal defendants from unending sentences, which could be the case if they were always subject to changing laws, years after their conviction.

The criminal defense attorneys of Brassel, Alexander & Rice, LLC have extensive experience with the rights of criminal defendants. If you or someone you know has been charged with a crime in Maryland, contact the attorneys of Brassel, Alexander & Rice, LLC today.